Jenkins v. Weis

868 P.2d 1374, 230 Utah Adv. Rep. 25, 1994 Utah App. LEXIS 2, 1994 WL 6827

• Court: Court of Appeals of Utah
• Decided: January 7, 1994
• Docket: 920652-CA
• Status: Published

Opinions

OPINION

JACKSON, Judge:

Appellant Lynn Jenkins brought an action against Elaine Weis for defamation, intentional infliction of emotional distress, and invasion of privacy. Jenkins appeals the jury verdict in favor of Weis. He also challenges several rulings by the trial court. We affirm.

FACTS

On January 16, 1987, a local television station aired a story concerning Utah’s thrift crisis, which involved the insolvency of several savings and loan institutions in Utah along with state-owned corporations that guaranteed their deposits. The broadcast included the following portions of a pre-taped interview with Elaine Weis, Commissioner of Financial Institutions:

MICHELLE KING: Neither depositors nor state officials are happy about this latest turn of events. It’s sure to strain even further the already difficult relations between both sides. As KUTV’s Rick Shenkman reports the controversy has now turned openly bitter, pitting the key leader of depositors against Financial Commissioner Elaine Weis.

RICK SHENKMAN: They were never friendly but now they’re virtual enemies. Elaine Weis, Commissioner of Financial Institutions, Lynn Jenkins, one of the key leaders of the thrift depositors.

LYNN. JENKINS: I don’t like the word “liar.” I like to just say that she has been less than honest. There has been a complete conspiracy of silence by the Commissioner in the financial institution [sic] since the day she came on board.

ELAINE WEIS: I would feel sorry for Lynn Jenkins because I think he’s a mentally deranged person.

RICK SHENKMAN: From the beginning of the thrift controversy it was almost certain to turn bitter. The state says depositors should only receive between 27 cents and 68 cents on the dollar, depositors feel the state set up the now-defunct corporation that was supposed to guarantee their money, but no one could have predicted that it would get this bad.

ELAINE WEIS: In my opinion, he’s a paranoid schizophrenic, and I would feel sorry for him, but he’s such a vicious, vicious person that I can’t and I wish I could.

LYNN JENKINS: I need Commissioner Elaine Weis under oath because she fails to live up to anything that she says verbally. She needs to be more forthright- and honest with the people.

ELAINE WEIS: I hope he’s not prone to violence because I really am afraid, of some, a, you know, not attack on me but my family.

LYNN JENKINS: I have never had a violent record in my life. She has nothing to fear from me except for the truth.

In April 1987, Jenkins filed a complaint against Weis alleging defamation, intentional infliction of emotional distress, and invasion of privacy based on the above remarks. On May 29, 1990, Weis filed a motion for designation of Jenkins as a public figure. On May 31, 1990, the' trial court ruled by minute entry that Jenkins was a public figure. The case was tried before a jury and after Jenkins presented his evidence and rested his case, Weis moved for a directed verdict. The parties argued the motion and the court ruled. As part of its ruling, the court, on its own motion, dismissed Jenkins’s claims of invasion of privacy and intentional infliction of emotional distress. Weis presented her evidence, including several witnesses who testified concerning Jenkins’s behavior.

The jury returned a verdict of no cause of action on the defamation claim, finding that although Weis had published defamatory statements about Jenkins, the statements were true. After entry of judgment, Jenkins’s motions for new trial and judgment notwithstanding the verdict were denied. Jenkins appeals.

ISSUES

Jenkins claims the trial court improperly: (1) determined that he was a public figure; (2) dismissed two of his causes of action sua sponte; (3) submitted erroneous jury instructions; (4) allowed the state attorney general’s office to represent Weis and allowed members of the attorney general’s staff to testify at trial; and (5) decided pretrial motions within five days of trial.

ANALYSIS

Public Figure Ruling

Jenkins claims the trial court improperly determined he was a public figure. Weis claims that even if the trial court improperly determined Jenkins was a public figure, its ruling was harmless and thus, should not be disturbed. See Utah R.Civ.P. 61 (1992); Huston v. Lewis, 818 P.2d 531, 533 (Utah 1991); State v. Verde, 770 P.2d 116,120 (Utah 1989); Stejfensen u Smith’s Management Corp., 820 P.2d 482, 489 (Utah App.1992), affd, 862 P.2d 1342 (Utah 1993). We agree.

An error is harmful only if there is a “reasonable likelihood that the error affected the outcome of the proceedings.” Stejfensen, 820 P.2d at 489. The jury found that Weis’s statements were true and truth is an absolute defense to a defamation claim. Brehany v. Nordstrom, Inc., 812 P.2d 49, 57 (Utah 1991). Thus, regardless of whether Jenkins is a public figure, if Weis’s statements were true, Jenkins has no claim for defamation. Accordingly, a ruling that Jenkins was not a public figure would not have changed the outcome of the trial and any error by the trial court in its public figure ruling would be harmless.

In the middle of Jenkins’s public figure argument in his brief, he alleges that all testimony was opinion testimony and was “not supported by any scientific conclusion or expert testimony.” The dissent takes this statement and completely recasts Jenkins’s public figure argument into a challenge to the sufficiency of 'evidence supporting the jury verdict that Weis’s defamatory statements were true. The dissent states that “Jenkins asserts that there is no evidence” to support the verdict of truth. (Emphasis added.)

That statement is contrary to the assertions that Jenkins makes in his brief albeit in his “public figure” argument. Jenkins asserts in his brief that “it must be pointed out that all testimony [to support the truth of the statements] was opinion and not supported by any scientific conclusion or expert testimony.” Further, Jenkins states that “[i]t is beyond the stretch of imagination in reviewing [Weis’s] statements to conclude that [the statements] were proven truthful based on the opinions of the witnesses who were called to testify.” Jenkins does not say there is no evidence; he says evidence exists but he does not believe it because it is not scientific or expert.² Neither Jenkins nor the dissent cites any legal authority to support the conclusion that the jury could not consider testimony of lay persons regarding the truth of the statements.³

Although Jenkins failed to supply us with a transcript of any of the trial proceedings or testimony (an indication that he was not making a direct challenge to the sufficiency of the evidence, because we need a transcript to review the evidence on such a challenge), he did insert in his brief a summary of the trial testimony supporting the truth of Weis’s statements. This evidentiary summary was prepared by Weis’s counsel in connection with the post-trial motions and is found in the record on appeal. Moreover, in Jenkins’s brief he “accepts the summary of the witnesses’ testimony which was submitted.” Accordingly, we set forth his eviden-tiary summary in full:

“I hope he’s not prone to violence because I really am afraid, of a, you know, not attack on me but my family.”

1. Weis testified that she observed Jenkins express anger and rage in her presence.

2. Weis testified that Jenkins verbally abused her secretary at the Department of Financial Institutions.

3. Weis testified that Jenkins publicly accused her of being a criminal at the October, 1986 meeting of the depositors of the failed thrifts.

4. Jenkins and others stated that Jenkins sought the excommunication of Assistant Attorney General Bryce Pettey and attorney Don Allen from the L.D.S. Church.

5. Jenkins sought a criminal investigation of Elaine Weis.

6. Kobert Eves testified that Jenkins slandered the title to property his company sought to develop.

7. Weis and George Sutton testified about incidents in which security guards were called to Department of Financial Institutions offices to deal with Jenkins.

8. Weis, Allen and Pettey all testified they feared Jenkins would harm their families.

9. Jenkins called Weis a criminal on the April 1986 KTKK radio broadcast.

10. An employee of the Utah Lt. Governor’s office required Jenkins to bring a security guard with him when he visited the office.

“I think he’s a mentally deranged person. ”

Weis testified that by saying this she meant Jenkins had disorganized thinking. The following is evidence that demonstrates the truth of that statement.

1. Weis testified that Jenkins’ writings were incomprehensible.

2. Weis testified that Jenkins’ plan to reorganize the failed thrifts violated every banking canon.

3. George Sutton testified that Jenkins is irrational and crazy.

4. Robert Eves testified that Jenkins is an “angry kook” and is the kind of person who tells himself the same story so many times that he starts to believe it.

5. Don Allen testified that Jenkins cannot process information without twisting facts and attacking people.

6. Jenkins was given opportunity to receive title to the house he lost in foreclosure but refused the offer on principle.

7. Jenkins buried his invented satellite dish in a garbage dump to preserve the secrecy of the invention.

8. At a time Jenkins was in default on his house mortgage he settled a property dispute and recovered $80,000. He invested the $80,000 in a business, Iron Star Manufacturing, instead of curing the default. He eventually abandoned the business a few months later.

“In my opinion he’s a paranoid schizophrenic. ”

Weis testified that by saying this she meant Jenkins was a person who sees plots because of his irrational thinking. The following is substantial evidence of the truth of this statement.

1. Plaintiff spoke of international criminal conspiracies on the KTKK radio broadcast. The conspiracies involved Weis, Judges of the Third District Court, federal judges, the FBI and organized crime.

2. Plaintiff told Robert Eves that Weis and Judge D. Frank Wilkins were conspiring against Eves to cheat him out of a $4 million real estate investment.

3. Dr. [Mohr], plaintiffs expert, testify (sic) that people with disordered thinking patterns have a tendency to see conspiracies against them.

Contrary to the dissent’s claim of no evidence, the foregoing reveals an evidentiary basis for the jury’s truth verdict.⁴ “We accord due deference to the jury as the fact finder and do not substitute ourselves in this role.” Evans ex. rel. Evans v. Doty, 824 P.2d 460, 468-69 (Utah App.1991), cert, denied, 836 P.2d 1383 (Utah 1992) (quoting Israel Pagan Estate v. Cannon, 746 P.2d 786, 793 (Utah App.1987), cert, dismissed, 771 P.2d 1032 (Utah 1989)). We will not overturn a jury verdict unless “the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.” See Nelson v. Trujillo, 657 P.2d 730, 732 (Utah 1982) (quoting McCloud v. Baum, 569 P.2d 1125, 1127 (Utah 1977)).

Directed Verdict: Emotional Distress and Invasion of Privacy

Jenkins claims the trial court improperly dismissed his causes of action for emotional distress and invasion of privacy before he was afforded a full and complete opportunity for a hearing. However, the full text of the minute entry regarding the dismissal reveals that it occurred following Weis’s motion for a directed verdict, argument by counsel, and consideration by the trial court. The directed verdict motion was made at the end of the second day of trial. At that point in the trial, Jenkins had rested his case and Don Allen, Eleanor Kent, Val Edwards, and George Sutton had testified on behalf of Weis. The minute entry states:

The jury having left the courtroom, comes now respective counsel and argue the defendant’s motion for a directed verdict. Based upon the arguments of respective counsel, court orders that the motion for a directed verdict is granted in part on the issues of damages resulting from the heart attack and damages resulting from the loss of the home. Court further orders, on its own motion, that the 2nd and 3rd causes of action are dismissed.

Jenkins has not challenged the substance of the trial court ruling. His brief on this point consists of barely more than one page and relies on a single procedural argument, i.e., the trial court did not comply with “Rule 4-501 Motions” of the Utah Code of Judicial Administration.⁵ However, this rule has to do with pre-trial and post-trial motions when there is time for research, deliberation, preparation of legal memorandum, and time for advance notice of hearing, rather than “in trial” motions made in the heat of the courtroom struggle.

A motion for directed verdict is typically made orally during trial, immediately after the court and counsel have heard plaintiffs evidence and deemed it insufficient to support plaintiffs case or some necessary element of the claim. Jenkins argues that a directed verdict must not be considered when notice and a hearing are lacking. But, Jenkins had the usual notice for the motion and hearing. He does not contend that he objected to the motion, objected to the ruling, asked that the motion proceedings be placed on the record, or requested additional time to respond. Jenkins, by his failure to take any affirmative actions at trial, has not preserved the issue for appeal. See In re Estate of Justheim, 824 P.2d 432, 434-35 (Utah App. 1991); LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 482-83 (Utah App. 1991).

Moreover, he has not supplied us with a trial transcript or a transcript of the motion proceedings which took place at the end of the second day. Thus, he has prevented us from reviewing either the procedural or substantive aspects of the action taken by either court or counsel.⁶ Even if he had preserved this issue for appeal, we cannot review the absent trial court record to determine whether his claims are meritorious.

Jury Instructions

Jenkins alleges that the trial court’s jury instructions “at best, must have been confusing to the jury.” Weis asserts that because Jenkins failed to properly object to the jury instructions below, he is precluded from raising an objection to the instructions on appeal. We agree. Failure to properly object to a jury instruction below bars an appellant from raising the issue on appeal. Hansen v. Stewart, 761 P.2d 14, 16 (Utah 1988); In re Estate of Justheim, 824 P.2d 432, 438 (Utah App.1991). Jenkins has failed to show anywhere in the record where he made any objection to the jury instructions. Accordingly, we will not consider this issue on appeal.

Involvement of Attorney General’s Staff

Jenkins asserts that because he sued Weis in her individual capacity, the trial court improperly allowed counsel from the state attorney general’s office to represent Weis. Jenkins also alleges the trial court improperly allowed members of the attorney general’s staff to testify at trial.

Jenkins did not adequately raise this issue before the trial court. Jenkins refers to a letter sent by his counsel to the attorney general’s office challenging its representation of Weis. Jenkins submitted this letter and the response from the attorney general’s office as part of his response to a motion for summary judgment. However, Jenkins never submitted any request or motion to the court to disqualify the attorney general’s office from representing Weis or to prevent members of the attorney general’s staff from testifying. Further, the record does not reveal any objection by Jenkins when attorney general staff members appeared as witnesses in court. We will not decide an issue unless the trial court has first had the opportunity to address the issue. Smith v. Iversen, 848 P.2d 677, 677 (Utah 1993); Jolivet v. Cook, 784 P.2d 1148, 1151 (Utah 1989). Accordingly, because Jenkins failed to properly present these issues to the trial court for resolution, we will not consider them on appeal.

Pretrial Motions

Jenkins asserts that the trial court abused its discretion in ruling on untimely pretrial motions. Specifically, Jenkins challenges the trial judge’s ruling, four days before trial, that Jenkins was a public figure. Again, Jenkins failed to preserve this issue for appeal. He has not identified any part of the record showing that he made any objection to the ruling, which he now claims was untimely. Further, Jenkins could have filed a motion for continuance of the trial if, as he now asserts, it was “humanly impossible for his attorney to prepare” for trial in the days remaining because of the public figure ruling.

CONCLUSION

Because the jury found Weis’s statements to be true, the trial court’s ruling that Jenkins was a public figure, if improper, was harmless. The trial court also properly dismissed Jenkins’s other causes of action. Further, we do not address the following issues because Jenkins did not properly preserve them for appeal: whether the trial court submitted an erroneous jury instruction, whether the trial court improperly allowed counsel from the state attorney general’s office to represent Weis and improperly allowed members of the attorney general’s staff to testify at trial, and whether the trial court improperly decided a pretrial motion within five days of trial.

GARFF, J., concurs.

2 . In fact, Jenkins's expert witness, Dr. Mohr, testified that “people with disordered thinking patterns have a tendency to see conspiracies against them.” Thus, the jury could infer from the testimony of Jenkins’s expert that because there was testimony that Jenkins saw conspiracies against him, his thinking patterns were disordered.

3 . The dissent cites one bench trial case, Alpar v. Weyerhaeuser Co., 20 N.C.App. 340, 201 S.E.2d 503, cert, denied, 285 N.C. 85, 203 S.E.2d 57 (1974), for the proposition that calling an individual "clinically paranoid” is a diagnosis that requires expert testimony to verify the condition. However, contrary to the dissent's representations, Alpar does not suggest that expert testimony is required to establish or rebut truth. Further, the case does not state that the judge could not consider lay testimony in his determination of truth. Moreover, unlike the statements made in Alpar, Weis never alleged Jenkins was "clinically” paranoid or schizophrenic.

Further, we disagree with the dissent’s assertion that calling an individual a "paranoid schizophrenic” is necessarily a clinical diagnosis.

4 . The dissent also suggests that the above evidence goes only to the validity of Weis's opinion, not to the truth of her assertions. This assumption can be made if expert testimony were the only way to prove the truth of the statements. However, neither the dissent nor Jenkins has pointed to any cases which require only the use of expert testimony to prove truth. Further, as stated above, along with the lay testimony presented, Jenkins’s own expert’s testimony could be used by the jury to conclude that Jenkins's thinking patterns were disordered.

5 . Rule 4-501 of the Code of Judicial Administration provides the appropriate method for submitting motions to the court. Rule 4-501(l)(a) states that ''[a]ll motions ... shall be accompanied by a memorandum of points and authorities ... appropriate affidavits, and copies of or citations by page number to relevant portions of depositions. Memoranda ... shall not exceed ten pages.” Subsection (b) goes on to state that "[t]he responding party shall then file and serve upon all parties within ten days ... a memorandum in opposition to the motion, and all supporting documentation.” Subsection (c) then provides that "[t]he moving party may serve and file a reply memorandum within five days after service of the responding party's memorandum.” Subsection (d) states that either party may submit the matter to the court for decision upon the expiration of the five-day period to file the reply memorandum.

6 . The dissent argues that only the damage issue relating to Jenkins’s heart attack and loss of his home were discussed at the motion proceedings at the end of the second day of trial. However, this seems impossible to determine without a transcript of the motion proceedings.